In the matter of Bar Machiavelli Pty Ltd (Administrator Appointed) [2018] NSWSC 1395

In the matter of Bar Machiavelli Pty Ltd (Administrator Appointed) [2018] NSWSC 1395

WFM Motors Pty Ltd was not entitled to withhold consent because Bicher & Son Pty Ltd's financial resources were not inferior to those of the insolvent proposed assignor, Bar Machiavelli Pty Ltd; Bar Machiavelli Pty Ltd in its current and prospective condition had no retailing skills as a restauranteur, because Ms Toppi's skills were no longer skills of the company; and there was no non-compliance with s 41 because WFM made no relevant requirement for further information after the request for consent.

Jurisdiction
Australia
Judgment Date
10 September 2018
Procedural Posture
Equity Corporations List; Proceedings Concerning Consent to Assignment of a Retail Shop Lease / Principal Judgment on Originating Process
Outcome
The plaintiffs established that WFM Motors Pty Ltd was not entitled to withhold consent to the proposed assignment of the Lease to Bicher & Son Pty Ltd.
Legal Topics
['assignment of Retail Shop Lease' 'landlord Consent' 'financial Resources and Retailing Skills of Proposed Assignee' 'procedure for Obtaining Consent to Assignment' 'voluntary Administration']
['landlord and Tenant' 'corporations' 'retail Leases'] ['assignment of Retail Shop Lease' 'landlord Consent' 'financial Resources and Retailing Skills of Proposed Assignee' 'procedure for Obtaining Consent to Assignment' 'voluntary Administration']

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Procedural Posture

Equity Corporations List; Proceedings Concerning Consent to Assignment of a Retail Shop Lease / Principal Judgment on Originating Process

Legal Issues

  1. 1 ['Whether WFM Motors Pty Ltd was entitled to withhold consent to the assignment of the Lease by Bar Machiavelli Pty Ltd to Bicher & Son Pty Ltd.' 'Whether Bicher & Son Pty Ltd had financial resources and retailing skills that were not inferior to those of Bar Machiavelli Pty Ltd.' 'Whether Bar Machiavelli Pty Ltd complied with the procedure for obtaining consent to assignment under (NSW) Retail Leases Act 1994, s 41.']

Ratio Decidendi

WFM Motors Pty Ltd was not entitled to withhold consent because Bicher & Son Pty Ltd's financial resources were not inferior to those of the insolvent proposed assignor, Bar Machiavelli Pty Ltd; Bar Machiavelli Pty Ltd in its current and prospective condition had no retailing skills as a restauranteur, because Ms Toppi's skills were no longer skills of the company; and there was no non-compliance with s 41 because WFM made no relevant requirement for further information after the request for consent.

Court Disposition

The plaintiffs established that WFM Motors Pty Ltd was not entitled to withhold consent to the proposed assignment of the Lease to Bicher & Son Pty Ltd.

Orders

  • ['Declares that the first defendant WFM Motors Pty Ltd is not entitled to withhold its consent to the assignment of the Lease by Bar Machiavelli Pty Ltd to Bicher & Son Pty Ltd.' 'Orders that the first defendant consent to the assignment by Bar Machiavelli Pty Ltd to Bicher & Son Pty Ltd.' 'Reserves liberty to apply...